Recently, in the Writ Petition filed by
Justice (Retired) Markandey Katju, former Judge of the Supreme Court,
challenging the unanimous resolutions passed by the Rajya Sabha on 11th
March, 2015 and the Lok Sabha on 12th March, 2015, condemning the
expression his views on Mahatma Gandhi and Subhash Chandra Bose the Supreme
Court has appointed noted jurist Fali S. Nariman as amicus curiae and has requested the Attorney General for India for
assistance. In the order dated 3rd
August, 2015, the Supreme Court has observed that it is prima facie not impressed
with the argument that any fundamental right had been violated enabling Justice
Katju to approach the Supreme Court. Perhaps, because, it is a ‘hard
case’. In the contemporary times, Gopal Subramanium, who is appearing for Justice
Markandey Katju is re-emerging as one of the strongest defenders of freedom of
speech and expression and Constitutionalism. His arguments in Devidas
Ramchandra Tuljapurkar case (decided May 14, 2015) have been
vividly noticed by the Supreme Court:
93. There can be no two opinions that
one can express his views freely about a historically respected personality
showing his disagreement, dissent, criticism, non-acceptance or critical
evaluation.
103. Mr. Subramanium would submit that
the free speech is a guaranteed human right and it is in fact a transcendental
right. The recognition of freedom of thought and expression cannot be
pigeon-holed by a narrow tailored test. The principle pertaining to the freedom
of speech has to be interpreted on an extremely broad canvas and under no
circumstances, any historical personality can cause an impediment in the same.
It is urged that the Constitution of India is an impersonalised document and
poetry which encourages fearlessness of expression, cannot be restricted
because of use of name of a personality.
Learned senior counsel has further submitted that freedom to offend is also a
part of freedom of speech. Poetry, which is a great liberator, submits Mr. Subramanium,
can be composed through a merely voice explaining plurality of thought. He
would submit the instant poem is one where there is “transference of
consciousness” that exposes the social hypocrisy
and it cannot be perceived with a conditioned mind.
104. The principle that has been put forth by Mr.
Subramanium can be broadly accepted, but we do not intend
to express any opinion that freedom of speech gives liberty to
offend.
Amongst the
various issues that emerge in Justice Katju’s, a few are of utmost importance.
Most prominent amongst them is that of freedom of expression. It requires no
reiteration that freedom of speech and expression is one the fundamental
pillars on which any democracy, including ours, rests. Therefore, it should
logically follow that a person has right to express his views fearlessly,
without there being any threat of condemnation by any authority or being
dissuaded by spectre of any form of repression by persons not in authority.
An
individual may have reasons to disagree with Justice Katju’s view that Mahatma
Gandhi injected religion into country’s blood stream; however, it does not
follow that an institution such as the Parliament gets any right to ‘have an
opinion’ to condemn Justice Katju (or any individual) merely for expressing his
opinion. Condemnation by an individual is not the same condemnation by an
institution. The Constitution does not contemplate that the Parliament would even
take cognizance of expression of opinions by individuals who are not speaking
in their official capacity. Where in the law making process, opinion of
citizens has to be considered – there is a separate mechanism for the same. This
is also supplemented by the Rules made by both the Houses. For instance, Rule
157 of the Rajya Sabha Rules of Procedure and Conduct of Business provides that
a resolution “shall not refer to the conduct or character of persons except in their
official or public capacity”. Clearly then, Justice Katju’s views could not
have been subject matter of a resolution in the Rajya Sabha. The Parliament is
obliged to secure freedom of speech and expression, and the limited
restrictions that it can impose have to be ‘by law’ legislated by them, which
has to be applied by executive if applicable, and individual’s liberty is to be
safeguarded by the judiciary. That is the structure contemplated under the
Constitution. Separately on another issue, on the day when the case was first
listed, one of the arguments that arose was whether, just like the Parliament
as an institution – it would be legal of the judiciary as an institution to take stand in respect
of debated historical fact and then condemn an individual unheard. It was submitted that an institution taking notice of things outside its scope of functioning was unheard of.
Justice
Katju’s view on Mahatma Gandhi and Netaji
may or may not be correct. The fact remains that similar views have been taken
by a number of academics. In the contemporary times, when there is serious
affront to academic independence and academic freedom, the unanimous expression
of condemnation without hearing the person to be condemned or properly
considering the basis of his views, poses a great danger to academic freedom in
the country. It sets a bad precedent to say the least. The unanimous condemnation of Justice Katju
by both houses of the Parliament does have an extreme chilling effect and is
bound to result in noticeable restraint in expression of dissent and alternative
views – which certainly is not in the nation’s interest. Such chilling effect
is directly results in generation of unprecedented public opinion against an individual, in respect of
which there is and cannot be any remedy in law. In my view, ‘academic freedom’
is not limited formal academics alone, but ought to be extended to every person
who engages himself in scholarly pursuits. Incidentally, it may be mentioned
that the South African Constitution, which draws much from our Constitution expressly
recognizes the right to academic freedom.
Article 51-A
(h) of the Constitution provides that “It
shall be the duty of every citizen of India to develop scientific temper,
humanism and the spirit of inquiry and reform;”. Development of scientific
temper necessarily involves observation, analysing, questioning and hypothesising.
Central to development of ‘scientific temper’ is the spirit of inquiry – which
does not accept anything without testing and trial, and the freedom to differ
from previous conclusions, without being penalised for the same. Passing of
unanimous resolution by the Parliament, condemning Justice Katju’s view, which
is symbolic of academic freedom and expression of dissent, seeks to suggest
that Parliament does not seem to believe that inquiry and expression of any
perspective other than the popular one is relatable to the freedoms guaranteed
under the Constitution. One must not forget that transition of India
into a modern nation is a consequence of inculcation of ‘scientific temper’ by
the likes of Sir Syed Ahmad Khan and Raja Ram Mohan Roy.
The fundamental
right of a person can be said to have been violated when a person has been
deprived of his right to freedom of speech and expression except in the manner
provided in the Constitution, or has been treated arbitrarily, or his right to
reputation has been prejudicially affected. In Justice Katju’s case, the passing of the
resolutions, in respect of which the Parliament lacked jurisdiction, is
evidently without the authority of law and suffers from all three vices.
Undeniably, the undercurrent of such resolutions is to ‘shame’ the person who has ventured to express his views, which do
not resonate with the popular perspective.
An
overarching issue that also arises is whether the Parliament can arrogate unto
itself the power to adjudicate, and then to use for itself that power to
adjudicate that expression of personal views on historical figures by Justice
Katju (an individual) is worthy of unanimous condemnation, that too without
affording him any opportunity to explain his case. It had long been settled by
the Supreme Court, including that of Indira
Gandhi v. Raj Narain (1975), that the Parliament could not perform
adjudicatory functions.
Regular
reliance to the Parliament’s plenary powers and its comparison with the
Parliament of the United Kingdom is untenable. One must not lose sight of the
fact that in the UK the Parliament is sovereign, but in India – it is the
Constitution that reigns supreme.
In fact, academically,
Justice Katju’s case is not a case about Justice Katju at all. It is a case
that begs the Supreme Court to define the relationship between the Parliament
as an institution and an individual citizen in the framework of the
Constitution with reference to the cherished values of the freedom movement. On a larger level, this case defines
relationship between individual and the organs of the State, singularly or as a conglomerate. I am hopeful that values of the freedom movement as enshrined in the text and meaning of the Constitution would only be cemented by the Courts.
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